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once described the 1930 letter to Schmitt as a “mine that can blow to pieces our
conception of the intellectual history of the Weimar period” [Taubes 1987, 27]);
turning the scandal around, we will try to read Schmitt’s theory as a response to
Benjamin’s critique of violence.
4.2. The aim of the essay is to ensure the possibility of a violence (the Ger-
man term Gewalt also means simply “power”) that lies absolutely “outside”
( außerhalb) and “beyond” ( jenseits) the law and that, as such, could shatter the dialectic between lawmaking violence and law-preserving violence ( rechtsetzende
und rechtserhaltende Gewalt). Benjamin calls this other figure of violence “pure”
( reine Gewalt) or “divine,” and, in the human sphere, “revolutionary.” What the
law can never tolerate—what it feels as a threat with which it is impossible to
come to terms—is the existence of a violence outside the law; and this is not
because the ends of such a violence are incompatible with law, but because of “its
mere existence outside the law” (Benjamin 1921, 183/239). The task of Benjamin’s
critique is to prove the reality ( Bestand) of such a violence: “If violence is also assured a reality outside the law, as pure immediate violence, this furnishes proof
that revolutionary violence—which is the name for the highest manifestation of
pure violence by man—is also possible” (202/252). The proper characteristic of
this violence is that it neither makes nor preserves law, but deposes it ( Entsetzung
des Rechtes [202/251–52]) and thus inaugurates a new historical epoch.
Benjamin does not name the state of exception in the essay, though he does
use the term Ernstfall, which appears in Schmitt as a synonym for Ausnahmezustand. But another technical term from Schmitt’s vocabulary is present in the
text: Entscheidung, “decision.” Law, Benjamin writes, “acknowledges in the ‘decision’ determined by place and time a metaphysical category” (Benjamin 1921,
189/243); but this acknowledgment is, in reality, only a counterpart to “the cu-
rious and at first discouraging experience of the ultimate undecidability of all
legal problems [ die seltsame und zunächst entmutgende Erfahrung von der letzlichen Un-
entscheidbarkeit aller Rechtsprobleme]” (196/247).
4.3. The theory of sovereignty that Schmitt develops in his Political Theology
can be read as a precise response to Benjamin’s essay. While the strategy of “Cri-
tique of Violence” was aimed at ensuring the existence of a pure and anomic vi-
olence, Schmitt instead seeks to lead such a violence back to a juridical context.
The state of exception is the space in which he tries to capture Benjamin’s idea
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of a pure violence and to inscribe anomie within the very body of the nomos.
According to Schmitt, there cannot be a pure violence—that is, a violence abso-
lutely outside the law—because in the state of exception it is included in the law
through its very exclusion. That is to say, the state of exception is the device by
means of which Schmitt responds to Benjamin’s affirmation of a wholly anomic
human action.
The relation between these two texts, however, is even closer than this. We
have seen how in Political Theology Schmitt abandons the distinction between
constituent and constituted power, which in the 1921 book had grounded sover-
eign dictatorship, and replaces it with the concept of decision. This substitution
acquires its strategic sense only once it is seen as a countermove in response
to Benjamin’s critique. For the distinction between lawmaking violence and
law-preserving violence— which was Benjamin’s target—corresponds to the
letter to Schmitt’s opposition; and it is in order to neutralize this new figure
of a pure violence removed from the dialectic between constituent power and
constituted power that Schmitt develops his theory of sovereignty. The sovereign
violence in Political Theology responds to the pure violence of Benjamin’s essay
with the figure of a power that neither makes nor preserves law, but suspends
it. Similarly, it is in response to Benjamin’s idea of an ultimate undecidability of
all legal problems that Schmitt affirms sovereignty as the place of the extreme
decision. That this place is neither external nor internal to the law—that sover-
eignty is, in this sense, a Grenzbegriff [limit concept]—is the necessary conse-
quence of Schmitt’s attempt to neutralize pure violence and ensure the relation
between anomie and the juridical context. And just as pure violence, according
to Benjamin, cannot be recognized as such by means of a decision ( Entscheidung
[Benjamin 1921, 203/252]), so too for Schmitt “it is impossible to ascertain with
complete clarity when a situation of necessity exists, nor can one spell out, with
regard to content, what may take place in such a case when it is truly a matter
of an extreme situation of necessity and of how it is to be eliminated” (Schmitt
1922, 9/6–7); yet, with a strategic inversion, this impossibility is precisely what
grounds the necessity of sovereign decision.
4.4. If these premises are accepted, then the entire exoteric debate between
Benjamin and Schmitt appears in a new light. Benjamin’s description of the
baroque sovereign in the Trauerspielbuch can be read as a response to Schmitt’s
theory of sovereignty. Sam Weber has acutely observed how Benjamin’s descrip-
tion of the sovereign “diverges ever so slightly, but significantly, from its osten-
sible theoretical source in Schmitt” (Weber 1992, 130). The baroque concept of
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sovereignty, Benjamin writes, “develops from a discussion of the state of excep-
tion, and makes it the most important function of the sovereign to exclude this”
( den auszuschließen [Benjamin 1928, 245/65]). In substituting “to exclude” for “to decide,” Benjamin surreptitiously alters Schmitt’s definition in the very gesture
with which he claims to evoke it: in deciding on the state of exception, the sov-
ereign must not in some way include it in the juridical order; he must, on the
contrary, exclude it, leave it outside of the juridical order.
The meaning of this substantial modification becomes clear only in the pages
that follow, where Benjamin elaborates a true and proper theory of “sovereign
indecision”; but this is precisely where the interweaving of reading and counter-
reading becomes tighter. While for Schmitt the decision is the nexus that unites
sovereignty and the state of exception, Benjamin ironically divides sovereign
power from its exercise and shows that the baroque sovereign is constitutively
incapable of deciding.
The antithesis between sovereign power [ Herrschermacht] and the capacity to
exercise it [ Herrschvermögen] led to a feature peculiar to the Trauerspiel which is, however, only apparently a generic feature and which can be illuminated only
on the basis of the theory of sovereignty. This is the tyrant’s inability to decide
[ Entschlußunfähigkeit]. The sovereign, who is responsible for making the deci-
sion on the state of exception, reveals, at the first opportunity, that it is almost
impossible for him to make a decision.” (Benjamin 1928,
250/70–71)
The division between sovereign power and the exercise of that power cor-
responds exactly to that between norms of law and norms of the realization
of law, which in Dictatorship was the foundation of commissarial dictatorship.
In Political Theology Schmitt responded to Benjamin’s critique of the dialectic
between constituent power and constituted power by introducing the concept
of decision, and to this countermove Benjamin replies by bringing in Schmitt’s
distinction between the norm and its realization. The sovereign, who should
decide every time on the exception, is precisely the place where the fracture
that divides the body of the law becomes impossible to mend: between Macht
and Vermögen, between power and its exercise, a gap opens which no decision is capable of filling.
This is why, with a further shift, the paradigm of the state of exception is
no longer the miracle, as in Political Theology, but the catastrophe. “In antithesis to the historical idea of restoration, [the baroque] is faced with the idea of
catastrophe. And it is in response to this antithesis that the theory of the state of
exception is devised” (Benjamin 1928, 246/66).
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An unfortunate emendation in the text of the Gesammelte Schriften has pre-
vented all the implications of this shift from being assessed. Where Benjamin’s
text read, Es gibt eine barocke Eschatologie, “there is a baroque eschatology,” the editors, with a singular disregard for all philological care, have corrected it to read:
Es gibt keine . . . , “there is no baroque eschatology” (Benjamin 1928, 246/66).
And yet the passage that follows is logically and syntactically consistent with the
original reading: “and for that very reason [there is] a mechanism that gathers
and exalts all earthly creatures before consigning them to the end [ dem Ende].”
The baroque knows an eskhaton, an end of time; but, as Benjamin immediately makes clear, this eskhaton is empty. It knows neither redemption nor a hereafter
and remains immanent to this world: “The hereafter is emptied of everything
that contains the slightest breath of this world, and from it the baroque extracts
a profusion of things that until then eluded all artistic formulation . . . in order
to clear an ultimate heaven and enable it, as a vacuum, one day to destroy the
earth with catastrophic violence” (246/66).
It is this “white eschatology”—which does not lead the earth to a redeemed
hereafter, but consigns it to an absolutely empty sky—that configures the
baroque state of exception as catastrophe. And it is again this white eschatology
that shatters the correspondence between sovereignty and transcendence, be-
tween the monarch and God, that defined the Schmittian theologico-political.
While in Schmitt “the sovereign is identified with God and occupies a position
in the state exactly analogous to that attributed in the world to the God of the
Cartesian system” (Schmitt 1922, 43/46), in Benjamin the sovereign is “confined
to the world of creation; he is the lord of creatures, but he remains a creature”
(Benjamin 1928, 264/85).
This drastic redefinition of the sovereign function implies a different situa-
tion of the state of exception. It no longer appears as the threshold that guaran-
tees the articulation between an inside and an outside, or between anomie and
the juridical context, by virtue of a law that is in force in its suspension: it is,
rather, a zone of absolute indeterminacy between anomie and law, in which the
sphere of creatures and the juridical order are caught up in a single catastrophe.
4.5. The decisive document in the Benjamin-Schmitt dossier is certainly the
eighth thesis on the concept of history, composed by Benjamin a few months be-
fore his death. Here we read that “[t]he tradition of the oppressed teaches us that
the ‘state of exception’ in which we live is the rule. We must attain to a concept
of history that accords with this fact. Then we will clearly see that it is our task
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to bring about the real [ wirklich] state of exception, and this will improve our
position in the struggle against fascism” (Benjamin 1942, 697/392).
That the state of exception has become the rule is not a simple intensifica-
tion of what in the Trauerspielbuch appeared as its undecidability. One must not
forget here that both Benjamin and Schmitt had before them a state—the Nazi
Reich—in which the state of exception proclaimed in 1933 had never been re-
pealed. From the jurist’s perspective, Germany found itself technically in a situ-
ation of sovereign dictatorship, which should have led to the definitive abolition
of the Weimar Constitution and the establishment of a new constitution, whose
fundamental characteristics Schmitt strove to define in a series of articles be-
tween 1933 and 1936. But what Schmitt could in no way accept was that the state
of exception be wholly confused with the rule. In Dictatorship he had already
stated that arriving at a correct concept of dictatorship is impossible as long as
every legal order is seen “only as a latent and intermittent dictatorship” (Schmitt
1921, xiv). To be sure, Political Theology unequivocally acknowledged the pri-
macy of the exception, insofar as it makes the constitution of the normal sphere
possible; but if, in this sense, the rule “lives only by the exception” (Schmitt 1922,
15/15), what then happens when exception and rule become undecidable?
From Schmitt’s perspective, the functioning of the juridical order ultimately
rests on an apparatus—the state of exception—whose purpose is to make the
norm applicable by temporarily suspending its efficacy. When the exception
becomes the rule, the machine can no longer function. In this sense, the unde-
cidability of norm and exception formulated in the eighth thesis puts Schmitt’s
theory in check. Sovereign decision is no longer capable of performing the task
that Political Theology assigned it: the rule, which now coincides with what it
lives by, devours itself. Yet this confusion between the exception and the rule
was precisely what the Third Reich had concretely brought about, and the ob-
stinacy with which Hitler pursued the organization of his “dual state” without
promulgating a new constitution is proof of it. (In this regard Schmitt’s attempt
to define the new material relation between the Führer and the people in the
Nazi Reich was destined to fail.)
It is from this perspective that Benjamin’s distinction in the eighth thesis
between real state of exception and state of exception tout court should be read.
The distinction was, as we have seen, already present in Schmitt’s discussion of
dictatorship. Schmitt borrowed the term from Theodor Reinach’s book De l’état
de siège, but while Reinach, referring to Napoleon’s decree of December 24, 1811, opposed an état de siège effectif (or military) to an état de siège fictif (or political), Schmitt, in his tenacious critique of the legal state [ Stato di diritto], gives the
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name “fictitious” to a state of exception that would be regulated by law, with
the aim of guaranteeing some degree of individual
rights and liberties. Con-
sequently, he forcefully denounces the Weimar jurists’ inability to distinguish
between the merely factual action of the president of the Reich under Article 48
and a procedure regulated by law.
Benjamin once again reformulates the opposition in order to turn it back
against Schmitt. Now that any possibility of a fictitious state of exception—in
which exception and normal conditions are temporally and locally distinct—has
collapsed, the state of exception “in which we live” is real and absolutely cannot
be distinguished from the rule. Every fiction of a nexus between violence and
law disappears here: there is nothing but a zone of anomie, in which a violence
without any juridical form acts. The attempt of state power to annex anomie
through the state of exception is unmasked by Benjamin for what it is: a fictio
iuris par excellence, which claims to maintain the law in its very suspension as
force-of-law. What now takes its place are civil war and revolutionary violence,
that is, a human action that has shed [ deposto] every relation to law.
4.6. The stakes in the debate between Benjamin and Schmitt on the state of
exception can now be defined more clearly. The dispute takes place in a zone of
anomie that, on the one hand, must be maintained in relation to the law at all
costs and, on the other, must be just as implacably released and freed from this
relation. That is to say, at issue in the anomic zone is the relation between vio-
lence and law—in the last analysis, the status of violence as a cipher for human
action. While Schmitt attempts every time to reinscribe violence within a jurid-
ical context, Benjamin responds to this gesture by seeking every time to assure
it—as pure violence—an existence outside of the law.
For reasons that we must try to clarify, this struggle for anomie seems to be
as decisive for Western politics as the gigantomachia peri tēs ousias, the “battle of giants concerning being,” that defines Western metaphysics. Here, pure violence
as the extreme political object, as the “thing” of politics, is the counterpart to
pure being, to pure existence as the ultimate metaphysical stakes; the strategy
of the exception, which must ensure the relation between anomic violence and